David Souter, who in his nineteen years on the Supreme Court infuriated so many on the right by his refusal to advance the movement's pet judicial causes - - - instead immersing himself in the study of history, partly to uncover in the past "some relevance to a constitutional rule where earlier judges saw none" - - - may well endure as the most authentic conservative in the Court's modern history.

(at 117). Tanenhaus (pictured at right), the editor of both the NYT Book Review and NYT Week in Review, not only argues that Justice Souter is best understood as a conservative but that the present politics and culture of the US are best described as being in a conservative phase. This might make it seem that conservatism is very much alive, but Tanenhaus argues that conservatism as a politics has succumbed to conservatism as a "movement." Tanenhaus contends that postwar conservatism has been a debate between the "realists" (who uphold the 18th Century ideals of Edmund Burke of "replenishing civil society by adjusting to changing conditions") and the "revanchists" (committed to a counterrevolution) - - - and that "at almost every critical juncture, the revanchists have won the argument." (at 20).

I picked this book up because of an acquaintance with Tanenhaus at the CUNY Writer's Institute. I recommend it because it provides a highly readable account of recent political and legal history, with a nice balance of details and broad brush strokes. Some of the material will be familiar to constitutional law professors, such as President Reagan's legislative agenda. Other material might be less so, especially if one is a bit rusty on the work of William F. Buckley or Whittaker Chambers. But the reason to read this book is not for its facts, but its insights. While Tanenhaus has been labeled a "neocon," the message of this book is relentlessly moderate:

Since its founding, our nation has been productively divided between liberal and conservative impulses. They form the dialectic of our infinitely renewable politics.

(at 114). Whether this dialectic has actually occurred or has been "productive" remains, to my mind, very debatable. Nevertheless such a claim is not dissimilar to many constitutional history theories of adjustment, feedback, or even backlash. Thus, while not a book devoted to constitutional law, this brief book (120 pages and no footnotes) can provide insights that might be fruitful for one's own scholarship and teaching.

In an article in the 24 September issue of the New York Review of Books, Ronald Dworkin analyzes the Sotomayor hearings as a missed opportunity:

Her hearings could therefore have been a particularly valuable
opportunity to explain the complexity of constitutional issues to the
public and thus improve public understanding of this crucially
important aspect of our government. But she destroyed any possibility
of that benefit in her opening statement when she proclaimed, and
repeated at every opportunity throughout the hearings, that her
constitutional philosophy is very simple: fidelity to the law. That
empty statement perpetuated the silly and democratically harmful
fiction that a judge can interpret the key abstract clauses of the
United States Constitution without making controversial judgments of
political morality in the light of his or her own political principles.
Fidelity to law, as such, cannot be a constitutional philosophy because
a judge needs a constitutional philosophy to decide what the law is.

Dworkin also discusses Ricci and Sotomayor's statements on foreign law. It's an article worth reading (and there is also a podcast discussion).

President Obama today extended the national emergency declared on September 14, 2001, by President Bush:

Consistent with section 202(d) of the National Emergencies Act, 50 U.S.C. Sec. 1622(d), I am continuing for 1 year the national emergency declared on September 14, 2001, in Proclamation 7463, with respect to the terrorist attacks of September 11, 2001, and the continuing and immediate threat of further attacks on the United States.

The emergency powers allow the President to call up the reserves and extend terms of active duty military, among other things. (Check out President Bush's original declaration, quoted in full in the link above to the National Emergencies Act, for a list of citations to emergency powers triggered by the declaration.)

The extension is written in language very close to President Bush's original declaration; it breaks no new ground, and we can't make any inferences about the administration's constitutional positions on presidential war-time or emergency powers. Instead, the extension probably only reflects the administration's continued need for flexibility in troop deployments in active military and combat zones.

A divided three-judge panel of the Ninth Circuit ruled last Friday that plaintiff Abdullah al-Kidd pleaded sufficiently specific facts to withstand former AG John Ashcroft's motion to dismiss his case for unlawfully using the federal material witness statute, 18 U.S.C. Sec. 3144, to detain him preventatively, without charges.

The panel ruled that Al-Kidd's complaint satisfied the pleading standard that the Supreme Court articulated last term in Ashcroft v. Iqbal. Recall that in Iqbal the Court refined the pleading standard in Bell Atlantic Corp. v. Twombleyand held that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice [and] only a complaint that states a plausible claim for relief survives a motion to dismiss." The Court ruled that Iqbal's allegations were "conclusory and not entitled to be assumed true," and therefore failed to meet this standard. According to Adam Liptak at the NYT, the case was cited more than 500 times in the two months after it came down and, according to Prof. Burbank at Penn (quoted in Liptak's story), resulted in "a blank check for federal judges to get rid of cases they disfavor."

Al-Kidd nevertheless met the standard, according to the Ninth Circuit panel:

Here, unlike Iqbal's allegations, al-Kidd's complaint "plausibly suggest[s]" unlawful conduct, and does more than contain bare allegations of an impermissible policy. While the complaint similarly alleges that Ashcroft is the "principal architect" of the policy, the complaint in this case contains specific statements that Ashcroft himself made regarding the post-September 11th use of the material witness statute. . . . The specific allegations in al-Kidd's complaint plausibly suggest something more than just bare allegations of improper purpose; they demonstrate that the Attorney General purposefully used the material witness statute to detain suspects whom he wished to investigate and detain preventatively, and that al-Kidd was subjected to this policy.

Al-Kidd, at 12314. (Read the allegations in the complaint here, paragraphs 108-141. Thanks to the ACLU for posting this and other case documents.)

The panel ruled that al-Kidd failed to meet the standard in a related claim, however. He failed to allege sufficiently specific facts to support his claim that Ashcroft directed his conditions of confinement in violation of the Fifth and Eighth Amendments--a claim very much like Iqbal's:

Similarly, al-Kidd's claims here that Ashcroft promulgated and approved the unlawful policy which caused al-Kidd "to be subjected to prolonged, excessive, punitive, harsh, unreasonable detention or post-release conditions." Contrary to the Sec. 3144 claim, however, the complaint does not allege any specific facts--such as statements from Ashcroft or from high ranking officials in the DOJ--establishing that Ashcroft had personal involvement in setting the conditions of confinement.

Al-Kidd, at 12320.

In the wake of Iqbal, the case leaves open the possibility that certain claims, sufficiently supported by, e.g., direct policy statements of officials, may survive a motion to dismiss. Between the complaint and the opinion, the case provides a roadmap for plaintiffs, at least for now in the Ninth Circuit.

Deadline November 6: The Program in Law and Public Affairs (LAPA) at Princeton University invites outstanding faculty, independent scholars, lawyers, and judges to apply for appointments as fellows for the academic year 2010–2011. "Drawn from law schools, the social sciences, the humanities, and from the world of policy-making and legal practice, LAPA's Fellows are engaged during their stay at Princeton in cutting-edge research about the law, legal practices and legal institutions."